Opinion
(December Term, 1860.)
1. At law, the rule is that fraud never is presumed, and he who alleges it must prove it.
2. It may be taken as a general proposition, that every man is presumed to be honest in his dealings until the contrary is proved.
CASE for a deceit in the sale of a sawmill, tried before Bailey, J., at last term of WILSON.
Strong and A. M. Lewis for plaintiff.
Dortch and B. F. Moore for defendant.
The defendant, being a part owner of the mill in question, sold an interest therein (one third part) to the plaintiff for $600. The (109) plaintiff said of the mill, before he bought it, that he did not know whether it was a good one or otherwise. The defendant said the mill was a good one, and that it had no deficiencies that he knew of. There was evidence, also, that the property was as the defendant represented it to be.
The judge, in charging the jury, explained to them the difference between an action for a warranty and an action on the case for a deceit; that in the former, recovery could be effected by showing a breach of the warranty only, and that whether the defendant was an honest man or otherwise, but in the latter he could not recover unless it was shown that the defendant was guilty of moral fraud; that in this case, as the plaintiff had declared that the defendant was guilty of practicing a fraud upon him in the sale of the mill, he was bound to prove it; that the burden of proof was upon him to establish his allegation to the satisfaction of the jury, for the law presumed that every one was honest in his dealing until the contrary was proved. Plaintiff excepted.
Verdict and judgment for the defendant, and appeal by the plaintiff.
His Honor very properly instructed the jury that as the plaintiff alleged the defendant had practiced a fraud on him, he (the plaintiff) was bound to prove the allegation, and if he had failed in making the proof, as a matter of course, the issue should be found against him. Here he might have stopped, but, in truth, what he adds, taken in connection with the preceding sentence, is simply the expression in different words of the same idea, to wit, that the burden of proof was on the plaintiff. Fraud is presumed in some instances by a court of equity, e. g., where one deals with another who is dependent on him from the relation existing between them; but at law the rule is, (110) fraud is never presumed, and he who alleges fraud must prove it.
This disposes of the case; but, as an isolated proposition, we take it to be true that every one is presumed to be honest in his dealings until the contrary is proved, in the same sense that every one is presumed to be compos mentis; that is, we take it for granted he is so until the contrary is proven; for instance, one who alleges the execution of a deed or will impliedly alleges that the maker had mental capacity, and on proof of the formal execution of the instrument the capacity is taken for granted, in the absence of evidence to the contrary. It is, however, unnecessary to enter upon this question as it is a mere matter of speculation, for in our case the onus of proof being on the plaintiff, it was for him to satisfy the jury that a fraud had been practiced by the defendant. There certainly is no presumption of law that every man is dishonest in his dealings until the contrary is proved, and without the aid of such a presumption the plaintiff could not be subjected to the onus probandi, which is the principle of law that governs all cases where the evidence does not preponderate on the one side or the other. There is
PER CURIAM. No error.
(111)